H.S. v. S.K.

2024 BCSC 566 H.S. v. S.K.

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: H.S. v. S.K., 2024 BCSC 566 Date: 20240307 Docket: E50403 Registry: New Westminster Between: H.S. aka H.P. Claimant And: S.K. aka S.P. Respondent Before: The Honourable Justice Schultes Oral Reasons for Judgment In Chambers Counsel for the Claimant: D. Glass The Respondent, Appearing on her own behalf: S.K. Place and Date of Hearing: New Westminster, B.C. November 2, November 21, and December 7, 2023; January 8, 17, and February 6, 2024 Place and Date of Judgment: New Westminster, B.C. March 7, 2024 Introduction [1] The parties in this family law matter are each making applications. [2] The respondent seeks to set aside an order relating to the parenting arrangements for the parties' child, D., that was made by Justice Tammen on August 10 of last year, arising from the circumstances under which she took D. on a trip to India. [3] In addition to opposing the respondent's application to set that order aside, the claimant seeks to have penalties imposed on her for breaching a previous order by taking that trip, and seeks an order that he and D. be able to take part in counselling that has the specific goal of restoring their relationship. Background [4] The parties were married in 2002, immigrated to Canada in 2011, and finally separated in 2012. They were divorced in 2016. [5] D., who is their only child, is now 15 years old. He

has health and developmental challenges, which the respondent has described as epilepsy, autism spectrum disorder, developmental delay, moderate intellectual disability, and behavioural impairment. She explained that his care needs to be handled with great precision. This includes ensuring that he takes medication, without which he would experience up to 25 seizures per day, and monitoring the seizures that he still has. [6] She deposed that he requires assistance in all aspects of his daily living, including personal hygiene, and has to attend 17 or 18 therapeutic appointments per week. She attached examples of her weekly appointment lists for D., to illustrate the extent of her responsibilities. Her view is that no one else, and certainly not the claimant, is equipped to provide this level of essential care and assistance. [7] A major point of dispute between the parties over the years has been the claimant's ability to access information about D.'s health care and the support for his disabilities - for example, the details of a procedure that D. apparently underwent in January of 2022. Having more recently received some of D.'s medical records[1] and spoken to his teacher who advised that he is doing well in school this year, the claimant expressed a more optimistic perspective on D.'s capabilities and level of functioning in his affidavits than the respondent. [8] Orders

dealing with child and spousal support to be paid by the claimant, and parenting time for him with D., were made in Provincial Court in 2016 and 2017. [9] The parenting time was required to be professionally supervised. There had been allegations of family violence by the claimant towards the respondent, some of which was said to have been witnessed by D., and parallel criminal proceedings. The claimant vehemently denies these allegations. [10] This court has since assumed jurisdiction over all of the family claims. [11] Although their explanations for it differed sharply, it is common ground between the parties that the contact between the claimant and D. since the separation has been sporadic. [12] The claimant alleged that he has been repeatedly thwarted by the respondent in his efforts to maintain a relationship with his son, including by her skewing the perspective of D.'s medical care providers with false allegations of family violence. For example, in 2022, D.'s paediatrician provided a letter recommending against contact with the claimant, based on the history of D. witnessing family violence that had been provided by the respondent. Ultimately the paediatrician's counsel clarified that the letter was not intended for use in a family proceeding, and had been provided only to assist in accessing further supports for D. The respondent has abandoned her reliance on

it. [13] For her part, she maintained that the claimant has been deliberately absent from the child's life for long periods and has exercised minimal parenting time, despite it being made freely available by her. She alleged that following an exercise of parenting time by the claimant in November 2021, D. experienced flashbacks of traumatic experiences with him, and expressed suicidal thoughts. D. then began expressing fears of abandonment by the respondent, which was said to have been brought on by the claimant's abandonment of him. [14] He did not see the claimant again until an unproductive counselling session that they both attended in December of 2023, which I will discuss further, although the claimant had made ongoing requests through his counsel for parenting time in the intervening period. (As an example of the many factual disagreements in this case, the respondent referred to her own correspondence with the claimant's counsel from last June, in which she invited the claimant to exercise such parenting time.) [15] In December 2021, following the adjournment of a scheduled trial date, Justice Mayer made interim orders that included granting guardianship and all parenting responsibilities pursuant to the Family Law Act to the respondent, expressly including her right to apply for a passport for D. pursuant to s. 41(g) of the FLA. As I will discuss, despite this term she

appears to have operated for a period of time under the misconception that the claimant's consent or court approval was required in order for her to obtain the passport. [16] In addition, Mayer J. ordered that: The respondent shall provide a notice prior to 14 days before departure for international trip with the child to the claimant. [17] A six‑day trial is currently scheduled to begin on April 29 of this year. The parties have advised that they cannot afford a privately funded s. 211 report to address D.'s needs and their respective abilities to meet them. A publicly funded report would not be ready in time for the trial dates. This is unfortunate, because without the objective insights that would be provided by such a report, the central question of why D. views the claimant so negatively will likely have to be resolved solely by an assessment of the parties' own testimony, along with any supporting evidence that they are able to obtain. [18] The respondent has been represented by two different counsel through the course of this application, which took place over several continuation dates. My recent review of the court file reveals two more recent filings by her relating to her legal representation. [19] On February 27, she filed a notice of intention to act in person. On March 4, she filed an affidavit indicating that her most recent counsel on this application, Mr. Kang,

is not available on the current trial dates, and making what I took to be submissions in support of an adjournment of those dates. This was based on her having obtained another counsel, Ms. Verdun‑Jones, who is able to act if new trial dates are arranged. [20] Because she is currently self‑represented, I will emphasize that the question of an adjournment is beyond the scope of this application. If she is seeking one, she should file an application for it as soon as possible. Travel to India [21] On July 25 of last year, the respondent obtained short leave for an application, which was to be heard on July 28, seeking to dispense with the requirement for the claimant's consent for her to obtain a passport for D., and with the requirement that the claimant sign any travel documents. Although it was not listed in the "Orders Sought" section of her notice of application, she also sought to dispense with the requirement for notice of international travel with D. that had been imposed by Mayer J. in December 2021. [22] In her affidavit in support of that application, which had been sworn on July 5 in response to an application by the claimant to vary his support obligations, the respondent described the purposes of the brief proposed visit as allowing her family to spend time with D., allowing her to receive the support of her family and relieve the depression from which she was then

suffering, and to break up the monotony of D.'s intensive therapeutic routine and bring him what she described as some "mental peace." She also described her mother as being "extremely sick" and said that she intended to spend time with her during the intended visit. [23] On July 10, her counsel advised that there had been a change in circumstances and the matter of her travel to India "was now urgent". He referred to the possibility of seeking short leave to hear her application for the order to permit the travel at the same time as the claimant's application, which was to be heard the following day, but did not ultimately do so. [24] In his reply affidavit, the claimant noted that during the hearing of his application to vary support on July 11, the respondent had advised the presiding judge of her need to go to India to "find out about his businesses", which she suspected he was still operating and earning undisclosed revenue from. (In other words, he suggested that her motive was something other than receiving support from her family.) [25] Although short leave for the application made on that date had been granted, the claimant's counsel was not available on July 28 because of scheduled vacation, so Justice Tammen adjourned the application to August 11, when his counsel would be available. [26] However, on August 3, the respondent's counsel emailed the claimant's counsel

and advised that the respondent had been able to obtain a passport for D. (I surmise that she discovered that the parenting responsibilities that had been allocated to her under Mayer J.'s order permitted this), and would be travelling with him to India as soon as she obtained their travel visas, returning in September. [27] On August 8, her counsel advised the claimant's counsel that the respondent would not be proceeding with her adjourned application with respect to the passport and related relief on August 11. [28] Based on copies of tickets that she attached to a subsequent affidavit, it appears that the respondent purchased what she described as "emergency tickets" for herself and D. on August 5, and that they then travelled to India on August 8. [29] On August 10, the claimant made a without notice application before Tammen J., although the respondent's counsel was actually provided with a copy of the notice of application before it commenced. [30] After hearing from the claimant's counsel, Tammen J. made the order that the respondent now seeks to set aside. [31] She was required to immediately return D. to Canada, where he was to be placed in the interim care of the claimant. She was also required to surrender D.'s passport and other travel documents to the claimant's counsel. Within 48 hours she was to file an affidavit explaining the circumstances under which she had

removed D. from Canada, and until D. was returned, the claimant was permitted to pay his child and spousal support into his own counsel's trust account. [32] Tammen J. awarded special costs of the application to the claimant, payable forthwith and in any event of the cause. The claimant's application for penalties under the FLA was adjourned generally, to be set once the respondent had returned to Canada. [33] On October 12, another judge ordered that the application for penalties was to be heard together with the respondent's application to set Tammen J.'s order aside. Under that order she was also permitted to provide D.'s passport to her own counsel instead of the claimant's, on her counsel's undertaking not to release it without contacting claimant's counsel. [34] On September 18, the respondent filed an affidavit explaining the reasons for her travel with D. She deposed that she was advised that her mother in India contracted dengue, which I take notice is a serious disease, and was even more severely affected by it because of pre‑existing health conditions, to the extent that the respondent's brother advised her that their mother might not recover. Her mother apparently wished to see the respondent and D. again at this critical point in her life. [35] The respondent further explained that because she was solely responsible for D.'s care, which she has previously explained

is extremely onerous and specialized, and the respondent has had minimal contact with him over the years, she had no option but to bring D. with her, the alternative being to leave him essentially homeless. [36] In a later affidavit, she alleged that the claimant himself travelled to India after obtaining the orders placing D. in his care. Reintegrative Counselling [37] The respondent deposed that over the years she has taken D. to a psychologist, a psychiatrist, and four different counsellors. In particular, since August 2022, he has received counselling at three different agencies. [38] In her affidavit of October 10, she attached a report from his current counselling agency dealing with a session in September 2023, during which D. described that when the family was still together the claimant had hit him, that he did not wish to see the claimant, and that if he could create an ideal life for himself, it would involve living solely with the respondent. [39] Prior to the November 21 continuation date, the respondent had agreed that the claimant and D. could engage in joint counselling. Such a session took place on December 4, facilitated by D.'s current counsellor. [40] In her affidavit describing the session, the respondent deposed that she had actually been agreeable to joint counselling since 2023, although it is not clear how she communicated that position. [41] The report

from the counsellor attached to her affidavit described D. refusing to enter the room where the counselling was to take place. After about five minutes of attempting to establish communication among the participants in the waiting room, D. became agitated, threw a water bottle at the claimant, and left the waiting area, refusing to return. [42] The apparent subject matter of D.'s hostility towards the claimant during this session was his belief that the claimant had refused to agree that he take a trip to Disneyland with the respondent, the benefits of which to D. she extolled in her affidavit, with the plan being for them to continue from there to another visit to India. (Her counsel sought authorization for the Disneyland portion of the trip at the December 7 continuation date.) [43] The claimant's perspective on this session was that he expected to meet only with D. and the counsellor, but instead found D. sitting with the respondent, who was speaking quietly to him. Given the past circumstances, his belief was that D.'s response to his presence was fueled by the respondent's attitude, particularly since she subsequently concluded the December 7 hearing by advising that she would be telling D. that the reason he could not go to Disneyland was because of the claimant. The claimant explained that he was prepared to consent to the Disneyland trip, just not the second stage of

progressing on to India, given the improper behaviour of the respondent in connection with her previous trip there with D. [44] The counsellor reported that in a subsequent session on December 6, D. was quite "clingy" with the respondent, and refused to enter the counselling room until he had been assured that the claimant was not there. The counsellor recommended that individual sessions be undertaken with D. to give him the tools to cope with the heightened frustration and anxiety that he feels in his relationship with the claimant, before "putting him in a situation that overwhelms his nervous system". I took this to be a caution that further counselling is required before joint sessions are possible. [45] The claimant noted that the focus of the current counsellor is entirely on assisting D. He did not suggest that this is inappropriate, but that it has led the counsellor to be more allied with the respondent and her perspective. In any event, that counselling agency does not offer the kind of approach that is necessary to repair his relationship with D. He submitted that counselling with a reintegrative focus is what needs be ordered at this point. Discussion [46] Tammen J. was unquestionably correct in concluding that the respondent had acted improperly by abandoning her application to dispense with the claimant's consent for her to obtain a passport for D. so that she

could travel to India, only to obtain a passport herself, cancel the application, and proceed with the travel. [47] Her application took place less than 14 days from her actual travel. While her counsel had alerted the respondent's counsel to her intentions on July 13, and her July 5 affidavit on the claimant's application had referred to such plans as well, the notice period required by Mayer J. would be meaningless if it did not relate to 14 days from a specific departure date. [48] Those earlier indications could not provide such a date because one did not exist yet. As we know, the tickets for the respondent's August 8 departure were purchased on an emergency basis on August 5. Her failure to provide the required (or really any) notice of that date breached Justice Mayer's order. [49] I do not accept the respondent's justification for her actions. In her July 5 affidavit for the claimant's application, she was already describing her mother as being "extremely sick", and it seems unlikely that the potential deathbed farewells that she spoke of in her explanatory affidavit in September were not anticipated by her before the tickets were purchased on August 5. I think the only change in the urgency of her travel arose from her realization that she did not actually require the claimant's consent in order to do it. [50] These actions smack of the self‑help remedies that must be

prevented in family litigation, especially when they involve travel with children outside of the jurisdiction. [51] That said, two wrongs do not make a right, and the claimant, showing admirable concern for D., candidly acknowledged that it would not be in the young person's best interest to simply place D. in his care, as the order provided. His counsel has suggested instead that that term be replaced by one that allocates reasonable parenting time to him on an interim basis, but I think it is better to address that issue in relation to the reintegrative counselling that is being sought. [52] Term 1 of the order of August 10, 2023, is therefore set aside. [53] Counsel previously agreed that the respondent's counsel would hold D.'s passport on an undertaking not to release it, in substitution for Term 2 of the order. Because she is currently without counsel, that term should be restored in its original form, to prevent further abuse of the passport by her. The respondent or her former counsel, as the case may be, will forthwith provide the passport to the claimant's counsel, to be held by her on the original language of Term 2. [54] Term 3 only made sense when it was feared that the respondent had left the country with D. on an indefinite basis. In such a case it would not have been appropriate for support to be paid to her elsewhere. That term will be set aside, and all child

and spousal support payments that were held in trust in the intervening period will be paid to the respondent. [55] I consider that the breach of the December 2021 order with respect to notice requires a fine, to deter the respondent and others who might be similarly inclined in contentious family cases from disregarding mandatory notice provisions with respect to travel with children. Pursuant to s. 230(2) of the FLA, she will pay a fine of $500 within 30 days of this order. I am imposing a fine in a lower amount than I might otherwise have for a breach of this seriousness because her income is relatively modest and, as I will discuss, she is facing an order for special costs arising from the breach. [56] She has already provided an affidavit in compliance with Term 5, so that term is spent. [57] For the same reasons that I imposed a fine, I am not inclined to set aside the order for special costs, since her conduct in travelling with the child contrary to the notice provisions was certainly deserving of rebuke. [58] Terms 7 and 8, which dealt with the vetting and entering of the order, are also spent and do not need to be revisited. [59] With respect to the reintegrative counselling, I agree with the claimant that the current counselling is focused on D.'s own specific needs, as it should be, and that in its current form it is incapable of assisting the two of them in

rebuilding a relationship, which is ultimately in D.'s best interests. [60] What is required instead is the sort of approach to situations of estrangement that has become well known in family cases, in which the young person's anxieties and hesitations about contact are respected, but those that are not rationally-based or that stem from alienating behaviour by the other parent are dealt with, so that the young person can have comfort and security in spending time with the previously estranged parent. I am familiar with several local agencies that provide such counselling. [61] While the respondent maintains that D.'s views are the result of witnessing family violence and being neglected by the claimant over many years, she at the same time professes to have encouraged the claimant to exercise his parenting time with D. in the recent past, which tends to undermine the currency of those fears, assuming them to be legitimate. [62] The problem with making an order for such counselling at this stage is that no specific resource has been identified by the claimant, so I do not know what I would be approving. It is not appropriate in the best interests of the young person to simply approve in advance whatever resource may be selected by the claimant. [63] Instead, I will adjourn this part of the application generally on the following terms: · The claimant will identify a suitable

counsellor or counselling service that is focused on the restoration of his relationship with D. The required elements are that the counsellor or service must have demonstrated experience in this specific subject matter, and must provide assurances that D.'s mental and emotional well being will be respected above all else in the process. (I would not think that the claimant would wish it otherwise.) · Once the claimant has identified the counsellor or service, he will provide the details of it to the respondent. If she consents, the counselling process will begin as soon as possible, with the parties sharing equally in the cost. · If the respondent does not consent, the claimant has liberty to apply to have the counsellor or service approved on an interim basis. I am prepared to hear that application if it becomes necessary and I am readily available, but to give maximum flexibility to the claimant in obtaining that approval, I will not be seized of it. [64] I see no benefit in supplementing the claimant's existing parenting time at this point. Without the reintegrative component that has been sought, expanded efforts to exercise his parenting time are inevitably doomed to end up like the December 4 session. [65] Overall, the claimant has had substantial success on the respondent's application to set aside the order and his own application, and since its merits will not change

regardless of the outcome of the trial, he will receive his costs of it in any event of the cause, at the ordinary scale of difficulty. "Schultes J." [1] After the scheduled continuation on November 21, which could not proceed due to problems with Teams, the respondent's counsel provided the claimant's counsel with copies of some of D.'s medical records, spanning the years of 2011 to 2022. The claimant has also been in contact with D.'s teacher, who advised him that D. is doing well in school this year.